UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule 13D
Under the Securities Exchange Act of 1934
(Amendment No. )*
AN-CON GENETICS, INC.
(Name of Issuer)
Common Stock
(Title of Class of Securities)
032347205
(CUSIP Number)
Mr. Eric Rainer Bashford Irwin A. Kishner, Esq.
2689 Strang Boulevard Herrick, Feinstein LLP
Yorktown Heights, New York 10598 2 Park Avenue
Tel.: (914) 245-2375 New York, New York 10016
(212) 592-1400
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
February 9, 1998
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box .
Check the following box if a fee is being paid with the statement . (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of securit
ies described in Item 1; and (2) has filed no amendment subsequent thereto
reporting beneficial ownership of five percent or less of such class.) (See
Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filed out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
(Continued on following page(s))
Page 1 of 8 Pages
CUSIP NO. 032347205 13D Page 2 of 8 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
THE ERIC RAINER BASHFORD CHARITABLE REMAINDER UNITRUST
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH SOLE
7 VOTING POWER
1,125,000 shares of Common Stock
8 SHARED VOTING POWER
None
9 SOLE DISPOSITIVE POWER
1,125,000 shares of Common Stock
10 SHARED DISPOSITIVE POWER
None
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,125,000 shares of Common Stock
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.4%
14 TYPE OF REPORTING PERSON*
OO -- Trust
* SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION
Page 2 of 8 Pages
<PAGE>
CUSIP NO. 032347205 13D Page 3 of 8 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Eric Rainer Bashford
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7 SOLE VOTING POWER
1,125,000 shares of Common Stock
8 SHARED VOTING POWER
None
9 SOLE DISPOSITIVE POWER
1,125,000 shares of Common Stock
10 SHARED DISPOSITIVE POWER
None
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,125,000 shares of Common Stock
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.4%
14 TYPE OF REPORTING PERSON*
IN
* SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION
Page 3 of 8 Pages<PAGE>
PART II TO SCHEDULE 13D
Item
1. Security and Issuer
Shares of Common Stock
An-Con Genetics, Inc.
One Huntington Quadrangle
Suite 1N11
Melville, New York 11747
(hereinafter, the "Issuer")
Item 2. Identity and Background
(1) (a) Name: Eric Rainer Bashford Charitable Remainder Unitrust
(b) State of Organization: New York
(c) Principal Business: Ownership and management of investments.
Address of Principal Business and of Principal Office:
2689 Strang Boulevard
Yorktown Heights, New York 10598
Attn: Eric Rainer Bashford
(d) Information required by Item 2(d): None.
(e) Information required by Item 2(e): None.
(2) (a) Name: Eric Rainer Bashford.
(b) 2689 Strang Boulevard
Yorktown Heights, New York 10598
(c) Mr. Bashford is a certified financial analyst with M.H. Meyerson
& Co., 525 Washington Boulevard, Jersey City, New Jersey 07303-
0260.
(d) Information required by Item 2(d): None.
(e) Information required by Item 2(e): None.
(f) United States of America.
Item 3. Source and Amount of Funds or Other Consideration
(1) Eric Rainer Bashford Charitable Remainder Unitrust:
The Eric Rainer Bashford Charitable Remainder Unitrust (the
"Trust") acquired the securities in accordance with the terms and
provisions of the Securities Exchange Agreement described in Item
5 (a), pursuant to which the Trust acquired the shares of common
stock (the "Common Stock") of the Issuer in exchange for 112.5
shares of common stock of BSD Development Beta Corporation
("BSD").
Page 4 of 8 Pages<PAGE>
(2) Eric Rainer Bashford:
Mr. Bashford is a Trustee of the Trust.
Item 4. Purpose of Transaction
(a) The shares of Common Stock of the Issuer were acquired for equity
participation in the Issuer for short-term or long-term
investment and with a view to the short-term resale of a portion
of such shares of Common Stock.
Immediately following the consummation of the securities exchange
agreement described in Item 5 (a), BSD became a wholly owned
subsidiary of the Issuer. At such time the assets of BSD
included certain equipment, licensing arrangements and other
intangible rights, cash in the amount of $250,000, and a $750,000
aggregate principal amount promissory note due May 10, 1998.
In addition, in connection with the acquisition of the Issuer's
securities, the Trust entered into a Profit Sharing Agreement
with Advanced Refractory Technologies, Inc. ("ART") and the
Norman P. Fuchs Individual Retirement Account (the "IRA")
pursuant to which ART has agreed to share with the Trust and the
IRA certain gains realized by ART on the sale or other
disposition (other than a pledge or grant of a lien or security
interest) of all or a portion of certain securities of the Issuer
owned by ART to a third person (other than an affiliate of ART)
up to an aggregate maximum amount of $1,000,000. Any such
profit is to be shared equally between the Trust and the IRA.
In addition, ART has granted to the Trust and the IRA a right of
first refusal with respect to any proposed sale or other
disposition (other than a pledge or a grant of a lien or
security interest) of any of those certain securities of the
Issuer owned by ART to a third person (other than and
affiliate of ART) at a price below the then current fair market
value of such shares.
Notwithstanding the foregoing, other than the right to
participate in the realized gains described above, neither the
Trust nor the IRA has any voting or investment power or any
other rights with respect to the securities of the Issuer
owned by ART.
(b)-(j) The undersigned has no plans or proposals which would result
in any of the actions enumerated in Item 4(b) through (j)
of Schedule 13D.
Item 5. Interest in Securities of the Issuer
(a) Eric Rainer Bashford is the sole grantor and a Trustee of the
Eric Rainer Bashford Charitable Remainder Unitrust, (the
"Trust"), which on February 9, 1998 acquired 1,125,000 shares of
Common Stock of the Issuer, representing approximately 8.4% of
such class of securities of the Issuer. The acquisition of such
Common Stock by the Trust was pursuant to the terms and
conditions of the Securities Exchange Agreement, executed and
delivered on February 9, 1998 among the Issuer and the Trust and
the other securities holders of BSD. The Trust exchanged 112.5
shares of common stock of BSD for the shares of Common Stock of
the Issuer. The exchange was consummated in New York, New York.
(b) As a Trustee the undersigned has the sole power to vote or to
direct the vote and the sole power to dispose or to direct the
disposition of the shares of Common Stock.
(c) None.
(d) None.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer
The shares of Common Stock of the Issuer are subject to a Registration
Rights Agreement dated February 9, 1998 among the Issuer, the Trust and certain
other stockholders of the Issuer.
The Trust has agreed, until February 8, 1999, to vote its shares of
common stock of the Issuer which are registered in its name in accordance with
the written instructions of a majority of the Board of Directors of the Issuer
or pursuant to its order.
The shares of common stock of the Issuer are not registered under the
Securities Act of 1933, as amended, and are subject to certain transfer
restrictions by the Issuer and applicable law.
Item 7. Materials to be Filed as Exhibits
A. Profit-Sharing Agreement by and among the Eric Rainer Bashford
Charitable Remainder Unitrust, the Norman P. Fuchs Individual Retirement Account
and Advanced Refractory Technologies, Inc., dated February 9, 1998.
Page 6 of 8 Pages
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete and
correct.
ERIC RAINER BASHFORD CHARITABLE
REMAINDER UNITRUST
February 19, 1998 By: /s/ Eric Rainer Bashford
Date Signature
Name: Eric Rainer Bashford
Title: Trustee
Page 7 of 8 Pages
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete and
correct.
February 19, 1998 /s/ Eric Rainer Bashford
Date Signature
Name: Eric Rainer Bashford
Page 8 of 8 Pages
PROFIT-SHARING AGREEMENT
THIS PROFIT-SHARING AGREEMENT ("Agreement") is made
this 9th day of February, 1998 by and among ADVANCED
REFRACTORY TECHNOLOGIES, INC., a corporation duly
organized. and existing under the laws of the State of
New York, having its principal office at 699 Hertel
Avenue, Buffalo, New York ("ART") the ERIC RAINER
BASHFORD CHARITABLE REMAINDER UNITRUST, a trust duly
organized and existing under the laws of the State of New
York, having its principal office at 2689 Strang
Boulevard, Yorktown Heights, New York ("Bashford") and
the NORMAN P. FUCHS INDIVIDUAL RETIREMENT ACCOUNT, an
individual retirement account, having its principal
office at 5 Flagpole Lane, East Setauket, New York
("Fuchs"). (Bashford and Fuchs are collectively referred
to herein as the "Principals".)
WHEREAS, pursuant to that certain Stock Exchange
Agreement by and among ART, An-Con Genetics, Inc. ("An-
Con") and BSD Development Beta Corporation ("BSD"), dated
February 9, 1998 ("Stock Exchange Agreement"), in
exchange for One Thousand (1,000) shares of Class A
preferred stock of BSD, par value $.01 per share, An-Con
issued and delivered to ART Two Million (2,000,000)
shares of common stock of An-Con, par value $.001 per
share (collectively, the "An-Con Shares");
WHEREAS, pursuant to Section 6.7 of the Stock
Exchange Agreement, An-Con has agreed to issue and
deliver to ART on or before September 6, 1998, Two
Million (2,000,000) shares of An-Con Class A preferred
stock, par value $.001 per share (collectively, the "An-
Con Preferred Stock");
WHEREAS, the An-Con Preferred Stock is to be
convertible into Two Million (2,000,000) shares of common
stock of An-Con, par value $.001 per share (collectively,
the "An-Con Conversion Shares"); and
WHEREAS, subject to the terms hereof, and in
consideration for, inter alia, certain substantial
financial risks assumed by the Principals, ART desires to
grant to the Principals a right to share in the potential
profits, if any, realized by ART upon the sale or other
disposition (other than a pledge or a grant of a lien or
security interest), of the An-Con Shares, the An-Con
Preferred Stock or the An-Con Conversion Shares, as the
case may be, to a third Person other than an Affiliate of
ART. (The An-Con Shares, the An-Con Preferred Stock and
the An-Con Conversion Shares are sometimes hereinafter
referred to individually as a "Share" and collectively as
the "Shares").
NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which are hereby
acknowledged, the parties hereto (each individually, a
"Party"; collectively, the "Parties" hereby agree as
follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. For purposes of this Agreement,
the following terms shall have the respective meanings
set forth below:
a. "Affiliate" of a Party means any Person
(as hereinafter defined) which Controls (as hereinafter
defined), is Controlled by, or is under common Control
with, such Party.
b. "Applicable Law" means any and all
applicable laws, rules, regulations, statutes, orders and
ordinances of any Government Authority (as hereinafter
defined).
c. "Consent" means any consent, certificate,
approval, authorization, waiver, permit, grant,
franchise, concession, agreement, license, exemption or
order of, registration, declaration or filing with, or
report, filing, registration or notice to, any Person,
including, without limitation, any Government Authority.
d. "Control" means the possession, directly
or indirectly, of the power to direct or cause the
direction of management or policies of a Person, whether
through the ownership of voting securities, by contract
or otherwise.
e. "Government Authority" means any foreign,
federal, state, local or other government, government
agency or authority or quasi-governmental body, or any
entity exercising any executive, legislative, judicial,
regulatory or administrative functions of or pertaining
to government, including, without limitation, any
arbitrator and any government department, board,
commission, court or tribunal.
f. "Fair Market Value" for shares of common
stock of An-Con, par value $.001 per share ("An-Con
Common Stock") as of a particular date means the closing
sale price for One (1) share of An-Con Common Stock as
reported on the primary securities exchange on which such
shares are listed or, in the event shares of An-Con
Common Stock are not listed on any securities exchange,
the last reported sale price on the NASDAQ National
Market System ("NASDAQ/NMS") or, in the event no such
reported sale takes place on the day subject to
determination of the Fair Market Value, the average of
the reported closing bid and asked prices on such
securities exchange or NASDAQ/NMS, or, in the event
shares of An-Con Common Stock are not listed on any
securities exchange or quoted on the NASDAQ/NMS, the
average of the bid and asked prices for the immediately
preceding Forty-Five (45) days as quoted on the NASDAQ
Small Cap Market, or in the event shares of An-Con Common
Stock are not quoted on the NASDAQ Small Cap Market, the
average of the bona fide independent bid prices for the
immediately preceding Forty-Five (45) days as reported in
the NASDAQ Bulletin Board, or in the event shares of An-
Con Common Stock are not reported in the NASDAQ Bulletin
Board, the average of the bona fide independent bid
prices for the immediately preceding Forty-Five (45) days
reported in the "over-the-counter" market in the "pink
sheets" published by the National Quotation Bureau, Inc.,
or in the event shares of An-Con Common Stock are not so
listed, quoted or included, the fair market value as
established by the good faith determination of any
nationally recognized firm of certified public
accountants selected by ART and reasonably acceptable to
the Principals. The Fair Market Value of the An-Con
Preferred Stock shall equal the Fair Market Value of the
applicable number of shares of An-Con Common Stock into
which the An-Con Preferred Stock is convertible.
g. "Person" means any individual,
proprietorship, joint venture, corporation, partnership,
limited liability company, limited liability partnership,
trust, unincorporated organization or Government
Authority.
ARTICLE 2
PROFIT-SHARING ARRANGEMENT
2.1 Calculation. During the Term (as hereinafter
defined), in the event ART receives cash in good funds
(collectively, the "Proceeds"') as a result of: (a) the
sale or other disposition (other than a pledge or a grant
of a lien or security interest) of all or any portion of
the An-Con Shares, the An-Con Preferred Stock or the An-
Con Conversion Shares to a third Person other than an
Affiliate of ART; (b) the sale or other disposition
(other than a pledge or a grant of a lien or security
interest) of any securities or other property received
upon or as a result of, any sale, exchange or other
disposition (other than a pledge or a grant of a lien or
security interest) of the An-Con Shares, the An-Con
Preferred Shares or the An-Con Conversion Shares to a
third Person other than an Affiliate of ART; or (c) the
distribution to ART of cash in excess of the liquidation
preference attributable to the An-Con Preferred Stock, as
a result of the dissolution or liquidation of An-Con;
then, in any such event, ART shall promptly pay to the
Principals as provided in Section 2.2, an amount equal to
Fifty-Percent (50%) of any Proceeds received by ART in
excess of One Dollar ($1.00) per Share ("Share Cost");
provided, however, that in the event An-Con shall: (i)
declare and pay to the holders of the An-Con Shares, the
An-Con Preferred Shares or the An-Con Conversion Shares,
as the case may be, a dividend or other distribution
payable in shares of An-Con equity securities; (ii)
subdivide the outstanding An-Con Shares, An-Con Preferred
Shares or An-Con Conversion Shares, as the case may be,
into a greater number of such shares; (iii) combine the
outstanding An-Con Shares, An-Con Preferred Shares or An-
Con Conversion Shares, as the case may be, into a lesser
number of such shares; or (iv) effect by a
recapitalization, reorganization, reclassification or the
like, a transaction having an equivalent effect; then, in
any such event, the Share Cost shall be correspondingly
adjusted; and provided further, however, notwithstanding
anything to the contrary contained herein, the maximum
aggregate payment to be made by ART to the Principals
pursuant to this Agreement shall be One Million Dollars
($1,000,000.00).
2.2 Payments to Principals. Any payments required
to be made by ART to the Principals pursuant to Section
2. 1, shall be paid as follows: (a) One-Half to
Bashford; and (b) One-Half to Fuchs.
2.3 Term. The term of this Agreement ("Term")
shall commence on the date hereof and shall expire on the
earlier of: (a) the date on which ART has paid the
Principals hereunder an aggregate of One Million Dollars
($1,000,000.00); (b) such date as ART shall have sold or
otherwise disposed of (other than a pledge or a grant of
a lien or security interest) to a third Person other than
an Affiliate of ART, all of the Shares and any securities
or other property received upon or as a result of, any
sale, exchange or other disposition (other than a pledge
or a grant of a lien or security interest) of any Shares
to a third Person other than an Affiliate of ART, and ART
has received the Proceeds related thereto and has paid to
the Principals all amounts to which they are entitled
pursuant to Section 2. 1; or (c) the date of distribution
to ART of cash in excess of the liquidation preference
attributable to the An-Con Preferred Stock, as a result
of the dissolution or liquidation of An-Con and ART has
received the Proceeds related thereto and has paid to the
Principals all amounts to which they are entitled
pursuant to Section 2. 1.
2.4 Right of First Refusal. In the event that
during the Term, ART shall desire to sell or otherwise
dispose (other than a pledge or a grant of a lien or
security interest) of any Shares to a third Person other
than an Affiliate of ART at below Fair Market Value
("Prospective Sale"), then ART shall, unless prohibited
by Applicable Law, promptly give written notice of the
Prospective Sale ("Notice of Prospective Sale") to the
Principals. The Notice of Prospective Sale shall set
forth all material terms and conditions of the
Prospective Sale (including, without limitation, the
identity of the third Person, if any), and shall
constitute an offer by ART to sell such Shares to the
Principals upon the same terms and conditions set forth
in the Notice of the Prospective Sale. Upon receipt of
the Notice of Prospective Sale from ART and at any time
within Thirty (30) days thereafter ("Election Period"),
the Principals shall have the right to elect in writing
(upon notice to ART) ("Election") to purchase such Shares
upon the same terms and conditions contained in the
Notice of Prospective Sale ("Right of First Refusal"),
and if the Principals make an Election, the Principals
shall have a period of Ninety (90) days after the
Election to purchase such Shares from ART. The purchase
and sale of such Shares shall be consummated by the
Principals' payment to ART of the aggregate amount of the
cash portion of the purchase price of such Shares
(adjusted to account for any amounts ART is required to
pay the Principals pursuant to Section 2.1) by wire
transfer of immediately available funds to an account
designated by ART and by delivery to ART to the non-cash
portion of such purchase price, if any, free and clear of
all liens and encumbrances of any kind, upon ART's
delivery to the Principals of certificates representing
the Shares to be purchased, duly endorsed in blank and in
proper form for transfer to the Principals, free and
clear of any liens and encumbrances of any kind created
by ART. In the event: (a) the Principals decline to
purchase such Shares by notice in writing to ART during
the Election Period; (b) the Principals fail to notify
ART within the Election Period of its election to
purchase such Shares; or (c) the Principals give ART
notice of its Election to purchase such Shares during the
Election Period but the Principals and ART fail to
consummate such purchase and sale as provided above;
then, in any one of such events, ART shall have the right
to consummate the Prospective Sale to a third Person
(which, in the event the identity of a third Person is
set forth in the Notice of Prospective Sale, shall be to
such third Person), upon the terms and conditions set
forth in the Notice of Prospective Sale, but at a price
per Share equal to or greater than the price per Share
set forth in the Notice of Prospective Sale, but only if
the Prospective Sale is consummated within a further One
Hundred Eighty (180) day period following the latest to
occur of the events referred to in clauses (a) through
(c) above. If such Prospective Sale is not consummated
within said further One Hundred Eighty (180) day period,
the Right Of First Refusal set forth in this Section 2.4
shall again apply.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF ART
ART hereby represents and warrants to the
Principals, as of the date hereof, as follows:
3.1 Standing. ART is a corporation duly organized
and validly existing under the laws of the State of New
York. ART has all requisite corporate power and authority
to conduct its business as it is now being conducted and
as presently contemplated to be conducted and to carry
out the transactions contemplated in this Agreement.
3.2 Authority. The execution and delivery of this
Agreement and the consummation of the transactions
contemplated herein have been duly authorized by all
necessary corporate action of ART, and ART has all
requisite corporate power and authority to execute,
deliver and perform this Agreement. This Agreement has
been duly executed and delivered by ART and constitutes
a legal, valid and binding agreement of ART enforceable
in accordance with its terms (except as its
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of
general application relating to or affecting enforcement
of creditors' rights or the application of equitable
principles in any action, legal or equitable). ART has
full power and authority to perform its obligations under
this Agreement and the transactions contemplated herein.
3.3 No Conflicts. Neither the execution, delivery
or performance of this Agreement nor the consummation of
the transactions contemplated herein, will conflict with
or constitute a breach of or a default under, or an event
which, with or without notice or lapse of time, or both,
would be a breach of, default under or violation of: (a)
ART's Certificate of Incorporation or By-Laws; or (b) any
agreement, document, indenture, mortgage or other
instrument or undertaking to which ART is a party or to
which any of its properties is subject, which breach,
default or violation would have a material adverse
effect, financial or otherwise, on ART or would be a
material violation of any Applicable Law relating to ART.
3.4 Litigation. There is not now pending and, to
the best of ART's knowledge, there is not threatened nor
is there any basis for, any claim, demand, litigation,
arbitration, action, suit, inquiry, investigation or
proceeding by or before any Government Authority to which
ART is or may be a party, and which: (a) may result in a
material adverse effect, financial or otherwise, on the
condition or prospects of ART; (b) may threaten the
validity of this Agreement; or (c) seeks to prevent, or
if successful would prevent, ART from consummating the
transactions contemplated in this Agreement. ART is not
subject to any judgment, decree, injunction, rule,
decision or order of any Government Authority having, or
which, insofar as can be foreseen in the future, may
have, any material adverse effect, financial or
otherwise, on the condition or prospects of ART.
3.5 Consents. There is no Consent necessary or
required in connection with the valid execution, delivery
and performance by ART of this Agreement and the
consummation of the transactions contemplated herein.
3.6 Compliance with Law. ART has complied in all
material respects with all Applicable Law relating to
ART, and no claims have been made to or against ART by
any Person to the contrary. ART has received no notice of
any violation of or noncompliance with any Applicable Law
which has not been cured, which violation or
noncompliance would have a material adverse effect,
financial or otherwise, on the condition or prospects of
ART.
3.7 Brokers. No agent, finder, broker, investment
banker or other Person acting under the authority of ART
is or will be entitled to any broker's fee or finder's
fee or any other commission or similar fee, directly or
indirectly, from ART or any Affiliate of ART as a result
of the transaction contemplated in this Agreement.
3.8 General Warranty. No representation or
warranty by ART in this Agreement and no statement
contained in any document, statement or certificate
furnished to the Principals by ART in connection with the
transactions contemplated in this Agreement, contains any
untrue statement of a material fact or omits to state a
material fact necessary to make the statements contained
or incorporated herein not misleading. All documents,
instruments and certificates delivered by or on behalf of
ART in connection with this Agreement and the
transactions contemplated herein are true, correct and
complete in an material respects.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BASHFORD
Bashford hereby represents and warrants to ART, as
of the date hereof, as follows:
4.1 Standing. Bashford is a trust duly organized
and validly existing under the laws of the State of New
York. Bashford has all requisite power and authority to
carry out the transactions contemplated in this
Agreement.
4.2 Authority. The execution and delivery of this
Agreement and the consummation of the transactions
contemplated herein have been duly authorized by all
necessary action of Bashford, and Bashford has all
requisite power and authority to execute, deliver and
perform this Agreement. This Agreement has been duly
executed and delivered by Bashford and constitutes a
legal, valid and binding agreement of Bashford,
enforceable in accordance with its terms (except as its
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of
general application relating to or affecting enforcement
of creditors' rights or the application of equitable
principles in any action, legal or equitable). Bashford
has full power and authority to perform its obligations
under this Agreement and the transactions contemplated
herein.
4.3 No Conflicts. Neither the execution, delivery
or performance of this Agreement nor the consummation of
the transactions contemplated herein, will conflict with
or constitute a breach of or a default under, or an event
which, with or without notice or lapse of time, or both,
would be a breach of, default under or violation of: (a)
Bashford's governing trust agreement; or (b) any
agreement, document, indenture, mortgage or other
instrument or undertaking to which Bashford is a party or
to which any of its properties is subject, which breach,
default or violation would be a material violation of any
Applicable Law relating to Bashford.
4.4 Litigation. There is not now pending and, to
the best of Bashford's knowledge, there is not threatened
nor is there any basis for, any claim, demand,
litigation, arbitration, action, suit, inquiry,
investigation or proceeding by or before any Government
Authority to which Bashford is or may be a party, and
which: (a) may threaten the validity of this Agreement;
or (b) seeks to prevent, or if successful would prevent,
Bashford from consummating the transactions contemplated
in this Agreement. Bashford is not subject to any
judgment, decree, injunction, rule, decision or order of
any Government Authority having, or which, insofar as can
be foreseen in the future, may have, any material adverse
effect on Bashford's ability to perform its obligations
under this Agreement and the transactions contemplated
herein.
4.5 Consents. There is no Consent necessary or
required in connection with the valid execution, delivery
and performance by Bashford of this Agreement and the
consummation of the transactions contemplated herein.
4.6 Compliance with Law. Bashford has complied in
all material respects with all Applicable Law relating to
Bashford, and no claims have been made to or against
Bashford by any Person to the contrary. Bashford has
received no notice of any violation of or noncompliance
with any applicable Law which has not been cured, which
violation or noncompliance would have a material adverse
effect on Bashford's ability to perform its obligations
under this Agreement and the transactions contemplated
herein.
4.7 Brokers. No agent, finder, broker, investment
banker or other Person acting under the authority of
Bashford is or will be entitled to any broker's fee or
finder's fee or any other commission or similar fee,
directly or indirectly, from Bashford or any Affiliate of
Bashford as a result of the transaction contemplated in
this Agreement.
4.8 General Warranty. No representation or
warranty by Bashford in this Agreement, and no statement
contained in any document, statement or certificate
furnished to ART by Bashford in connection with the
transactions contemplated in this Agreement contains any
untrue statement of a material fact or omits to state a
material fact necessary to make the statements contained
or incorporated herein not misleading. There is no fact
known to Bashford which Bashford has not disclosed to ART
which might reasonably be expected to have or result in
a material adverse effect, financial or otherwise, on the
ability of Bashford to perform its obligations under this
Agreement. All documents, instruments and certificates
delivered by or on behalf of Bashford in connection with
this Agreement and the transactions contemplated herein
are true, correct. and complete in all material respects.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF FUCHS
Fuchs hereby represents or warrants to ART, as of
the date hereof, as follows:
5.1 Standing. Fuchs is an individual retirement
account duly organized, validly existing and in good
standing. Fuchs has all requisite power and authority to
carry out the transactions contemplated in this
Agreement.
5.2 Authority. The execution and delivery of this
Agreement and the consummation of the transactions
contemplated herein have been duly authorized by all
necessary corporate action of Fuchs, and Fuchs has all
requisite power and authority to execute, deliver and
perform this Agreement. This Agreement has been duly
executed and delivered by Fuchs and constitutes a legal,
valid and binding agreement of Fuchs enforceable in
accordance with its terms (except as its enforceability
may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general
application relating to or affecting enforcement of
creditors' rights or the application of equitable
principles in any action, legal or equitable). Fuchs has
full power and authority to perform its obligations under
this Agreement and the transactions contemplated herein.
5.3 No Conflicts. Neither the execution, delivery
or performance of this Agreement, nor the consummation of
the transactions contemplated herein, will conflict with
or constitute a breach of or a default under, or an event
which, with or without notice or lapse of time, or both,
would be a breach of, default under or violation of: (a)
Fuch's Constituent Documents; or (b) any agreement,
document, indenture, mortgage or other instrument or
undertaking to which Fuchs is a party or to which any of
its properties is subject, which breach, default or
violation would be a material violation of any Applicable
Law relating to Fuchs.
5.4 Litigation. There is not now pending and, to
the best of Fuch's knowledge, there is not threatened nor
is there any basis for, any claim, demand, litigation,
arbitration, action, suit, inquiry, investigation or
proceeding by or before any Government Authority to which
Fuchs is or may be a party, and which: (a) may threaten
the validity of this Agreement; or (b) seeks to prevent,
or if successful would prevent, Fuchs from consummating
the transactions contemplated in this Agreement. Fuchs is
not subject to any judgment, decree, injunction, rule,
decision or order of any Government Authority having, or
which, insofar as can be foreseen in the future, may
have, any material adverse effect on Fuch's ability to
perform its obligations under this Agreement and the
transactions contemplated herein.
5.5 Consents. There is no Consent necessary or
required in connection with the valid execution, delivery
and performance by Fuchs of this Agreement, and the
consummation of the transactions contemplated herein.
5.6 Compliance with Law. Fuchs has complied in all
material respects with all Applicable Law relating to
Fuchs, and no claims have been made to or against Fuchs
by any Person to the contrary. Fuchs has received no
notice of any violation of or noncompliance with any
Applicable Law which has not been cured, which violation
or noncompliance would have a material adverse effect on
Fuch's ability to perform its obligations under this
Agreement and the transactions contemplated herein.
5.7 Brokers. No agent, finder, broker, investment
banker or other Person acting under the authority of
Fuchs is or will be entitled to any broker's fee or
finder's fee or any other commission or similar fee,
directly or indirectly, from Fuchs or any Affiliate of
Fuchs as a result of the transactions contemplated in
this Agreement.
5.8 General Warranty. No representation or
warranty by Fuchs in this Agreement and no statement
contained in any document, instrument or certificate
furnished to ART by Fuchs in connection with the
transactions contemplated in this Agreement, contains any
untrue statement of a material fact or omits to state a
material fact necessary to make the statements contained
or incorporated herein not misleading. There is no fact
known to Fuchs which Fuchs has not disclosed to ART which
might reasonably be expected to have or result in a
material adverse effect, financial or otherwise, on the
condition or prospects of Fuchs or on the ability of
Fuchs to perform its obligations under this Agreement.
All documents, instruments and certificates delivered by
or on behalf of Fuchs in connection with this Agreement
and the transactions contemplated herein, are true,
correct and complete in all material respects.
ARTICLE 6
MISCELLANEOUS
6.1 Survivability. Notwithstanding anything
contained herein to the contrary, all representations,
warranties and agreements set forth in this Agreement
shall survive and continue to bind the Parties after the
execution and delivery of this Agreement, the termination
or expiration of this Agreement, and any investigation
conducted by any Party, to the extent and for as long as
may be necessary to give effect to the rights, duties and
obligations of the Parties pursuant to this Agreement,
subject to any applicable statutes of limitations.
6.2 Law. This Agreement shall be governed by and
construed in accordance with the laws of the state of New
York, without reference to principles of conflicts of
laws.
6.3 Notices. All notices required or permitted
hereunder shall be in writing and shall be: (a) sent by
telex or facsimile transmission (to be effective when
receipt is acknowledged unless sent after 5:00 p.m. on
any business day, in which event notice shall be deemed
received on the next business day); (b) personally
delivered; (c) sent by certified mail, return receipt
requested; or (d) sent by a nationally recognized,
commercial overnight delivery service with provisions for
a receipt, postage or delivery charges prepaid and,
except as otherwise provided in Section 6.3(a), shall be
deemed given when personally delivered or when placed in
the possession of such mail or delivery service, and
addressed to the Parties, as follows:
To ART: Advanced Refractory
Technologies, Inc.
699 Hertel Avenue
Buffalo, New York 14207
Attn.: Keith A. Blakely, President
Facsimile: 716-875-3746
with a copy to: Damon & Morey LLP
1000 Cathedral Place
298 Main Street
Buffalo, New York 14202-4096
Attn.: Gust P. Pullman, Esq.
Facsimile: 716-856-5521
To Bashford: Eric Rainer Bashford
Charitable Remainder Trust
2689 Strang Boulevard
Yorktown Heights, New York 10598
Attn: Mr. Eric Rainer Bashford, Trustee
Facsimile: (914) 962-1486
with a copy to: Herrick, Feinstein LLP
Two Park Avenue
New York, New York 10016
Attn.: Irwin A. Kishner, Esq.
Facsimile: (212) 889-7577
To Fuchs: Norman P. Fuchs Individual
Retirement Account
5 Flagpole Lane
East Setauket, New York 11753
Attn: Mr. Norman P. Fuchs, Custodian
Facsimile: (516) 689-5752
with a copy to: Herrick, Feinstein LLP
Two Park Avenue
New York, New York 10016
Attn.: Irwin A. Kishner, Esq.
Facsimile: (212) 889-7577
Notice of change of address shall be given in accordance
with the provisions of this Section 6.3 and shall be
effective only upon receipt.
6.4 Arbitration. Any controversy or claim arising
out of or pursuant to this Agreement shall be submitted
to final and binding arbitration conducted in accordance
with the expedited Commercial Arbitration Rules of the
American Arbitration Association ("Rules") by One (1)
arbitrator appointed in accordance with this Agreement
and the Rules. The seat of the arbitration shall be in
Albany, New York. Judgment upon any award rendered in
such arbitration may be entered in any court of competent
jurisdiction. This Section shall not limit any Party's
right to obtain any provisional or equitable remedy,
including, without limitation, injunctive relief from any
court of competent jurisdiction, as may be necessary in
the sole judgment of such Party to protect its rights
hereunder.
6.5 Expenses. The nonprevailing Party or Parties
in any arbitration or litigation hereunder shall be
required to reimburse the prevailing Party or Parties for
all of its reasonable costs and expenses in such
arbitration or litigation, including, without limitation,
attorneys' fees and costs.
6.6 Parties Bound. This Agreement shall be binding
upon and shall inure to the benefit of each Party and its
respective legal representatives, successors and
permitted assigns, subject to the restrictions against
assignment provided in Section 6.9.
6.7 Waiver. Failure by any Party to insist upon
strict performance of any provision herein by any other
Party shall not be deemed a waiver by such Party of its
rights or remedies or a waiver by it of any subsequent
default by such other Party, and no waiver shall be
effective unless it is in writing and duly executed by
the Party entitled to enforce the provision being waived.
6.8 Severability. If any provision of this
Agreement is determined by a court of competent
jurisdiction or an arbitrator to be illegal or
unenforceable, the Parties shall use reasonable efforts
to negotiate a legal and enforceable provision reflecting
the legal and economic substance of such illegal or
unenforceable provision as closely as possible. The
invalidity of any part of this Agreement shall not render
invalid the remainder of this Agreement.
6.9 Assignability. No Party shall have the right
to assign any of its rights, duties or obligations
hereunder without the prior written consent of the other
Parties, which consent shall not be unreasonably withheld
or delayed; provided, however, that ART, upon prior
written notice to the Principals, shall have the right to
assign its rights, duties and obligations under this
Agreement to any Affiliate of ART which consents in
writing to be bound by the terms and conditions of this
Agreement. No assignment of any rights, duties or
obligations under this Agreement relieves the assigning
Party of primary liability for its duties or obligations
under this Agreement, and as among the Parties, the
assigning Party shall continue to be liable for all of
its duties or obligations under this Agreement as though
no assignment has been made.
6.10 Entire Agreement. This Agreement constitutes
the entire agreement by and among the Parties regarding
the subject matter contained herein and supersedes all
prior and contemporaneous undertakings and agreements by
and among the Parties, whether written or oral, with
respect to such subject matter.
6.11 Amendment. This Agreement may not be amended
except by a writing executed by all Parties.
6.12 Cooperation. Each Party agrees to take all
such steps, execute and deliver such further documents
and perform such acts as may be reasonably requested by
any other Party in order to effectuate the purposes of
this Agreement.
6.13 Counterparts. This Agreement may be executed
simultaneously in Two (2) or more counterparts, any of
which shall be deemed an original, and all of which
together shall constitute one and the same instrument,
notwithstanding that all Parties are not a signatory to
the original or the same counterpart.
6.14 Headings. The headings used herein are
inserted for convenience only and are in no way intended
to describe, interpret, define or limit the scope, extent
or intent of this Agreement.
6.15 Third Parties. Nothing herein expressed or
implied is intended or shall be construed to confer upon
or give any Person other than the Parties and their
respective legal representatives, successors and
permitted assigns, any right or remedy under or by reason
of this Agreement.
6.16 Transaction Expenses. Each Party shall pay its
own fees, costs and expenses and those of its
Representatives with respect to the transaction
contemplated in this Agreement.
6.17 No Public Statements. Without the prior
consent of the other Parties, which consent shall not be
unreasonably withheld or delayed, no Party shall disclose
to the press or news media the existence of or terms of
this Agreement, except as otherwise required by
Applicable Law; provided, however, the Principals and
their respective Affiliates and agents shall have the
right to disclose the general nature of the transactions
contemplated in this Agreement but only in connection
with the sale or other disposition of any An-Con equity
securities owned by either Principal or any Affiliate of
either Principal; provided, however, under no
circumstances pursuant to such disclosure shall any such
party have the right to disclose any confidential or
proprietary information of ART.
6.18 Cumulative Rights and Remedies. The rights and
remedies of the Parties under this Agreement shall be in
addition to and cumulative of, and not in lieu or
exclusive of, any other rights or remedies of the Parties
pursuant to this Agreement, at law or in equity, except
that the arbitration remedy set forth in Section 6.4 is
exclusive to the extent provided therein. The rights and
remedies of any Party based upon, arising out of or
otherwise in respect of, any inaccuracy in or breach of,
any representation, warranty or agreement of any other
Party or failure to fulfill any condition shall in no way
be limited by the fact that the act, omission, occurrence
or other statement of facts upon which any claim for such
inaccuracy or breach is based may also be the subject
matter of any other representation, warranty or agreement
as to which there is no inaccuracy or breach.
IN WITNESS WHEREOF, the Parties have caused this
Profit-Sharing Agreement to be signed by their duly
authorized officers or signatories on the day and year
first above written.
ADVANCED REFRACTORY TECHNOLOGIES, INC.
By: /s/ Keith A. Blakely
Authorized Officer
ERIC RAINER BASHFORD CHARITABLE
REMAINDER UNITRUST
By: /s/ Eric Rainer Bashford
Authorized Signatory
NORMAN P. FUCHS INDIVIDUAL RETIREMENT
ACCOUNT
By: /s/ Norman R. Sherman
Authorized Signatory
ADVANCED REFRACTORY TECHNOLOGIES, INC.
By: /s/ Keith A. Blakely
Authorized Officer
ERIC RAINER BASHFORD CHARITABLE
REMAINDER UNITRUST
By: /s/ Eric Rainer Bashford
Authorized Signatory
NORMAN P. FUCHS INDIVIDUAL RETIREMENT
ACCOUNT
By: /s/ Norman R. Sherman
Authorized Signatory
